Ward v. Kirk

United States District Court, W.D. Wisconsin

August 30, 2017

ROBERT WARD, Plaintiff,v.DANE KIRK, Defendant.

OPINION AND ORDER

BARBARA B. CRABB District Judge

Pro se
prisoner and plaintiff Robert Ward is proceeding on a claim
that defendant Dane Kirk violated plaintiff's Eighth
Amendment rights by ignoring his threats of self-harm and
allowing him to cut and seriously wound himself. Summary
judgment motions in this case are due on October 27, 2017,
and a trial is tentatively scheduled for May 7, 2018. Now
before the court are plaintiff's motion to compel
discovery, dkt. #30, and his fourth motion for assistance in
recruiting counsel, dkt. #33. For the reasons explained
below, I am denying both motions.

OPINION

A.
Motion to Compel Discovery

Plaintiff
seeks a court order under Federal Rule of Civil Procedure
37(a), compelling defendant to answer interrogatories and
produce documents that plaintiff sought in a discovery
request, which plaintiff alleges defendant failed to do.
However, plaintiff's motion is entirely without merit.

To
begin with, plaintiff moved to compel before the discovery he
was seeking was even due. Defendant responded in a timely
manner and provided plaintiff the requested discovery before
the response deadline. The record reflects that defendant
complied with the relevant deadlines and plaintiff was given
notice of the discovery timeline, but ignored or otherwise
failed to appreciate it. Dkts. ##28-32. (Plaintiff has since
registered no complaints about the sufficiency or
completeness of defendant's responses.) Thus, plaintiff
had no basis for his motion to compel, which he filed without
warning to defendant, even though defendant informed him that
he would receive a response before the 30-day response
deadline.

Plaintiff's
motion must be denied. In the future, he should take care to
read the court's instructions more carefully and refrain
from filing frivolous motions.

B.
Motion for Assistance in Recruiting Counsel

The
court has denied three previous requests by plaintiff for
assistance with recruitment of counsel in this case, both
because the requests were premature and because plaintiff did
not explain why he was unable to litigate this case on his
own. Dkts. #12 at 3-4 and #29 at 1-2. As I told plaintiff, he
has no right to court-appointed counsel in a civil case like
this one. Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014). If plaintiff wants the court to help him find a
lawyer to volunteer to represent him, he must show three
things: (1) he cannot afford to hire his own lawyer; (2) he
has made reasonable efforts on his own to find a lawyer to
represent him; and (3) his case is so complex or difficult
(legally or factually) that he is unable to handle it on his
own. Id.; Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007).

Plaintiff
has satisfied the court that he is indigent and cannot afford
to hire counsel. He submitted two letters from law firms
declining to represent him in his first motion for assistance
with recruitment of counsel, which was filed more than a year
ago. Dkt. #2. This court typically requires at least three
such letters to demonstrate a plaintiff's reasonable
efforts to recruit counsel. Plaintiff has submitted no
additional letters in his three subsequent motions filed over
the past few months. He says that he has contacted three more
attorneys, but he has not filed any proof that he has done
so.

I
previously told plaintiff more than once that, at the very
least, he is capable of litigating any issues relating to
exhaustion of administrative remedies, but the deadline for
filing a dispositive motion on that basis has now come and
gone without defendant's filing anything, so plaintiff
renewed his request. Anticipating that he might do so, I also
told plaintiff that in any new request, “he should be
prepared to explain why he believes he needs a lawyer to
litigate what is a relatively straightforward case that is
unlikely to require expert testimony, difficult legal issues
or a large amount of discovery.” Dkt. # 29 at 2.
Plaintiff says in his motion that he has a hard time
understanding new things, he has no knowledge of the law and
he has limited access to the law library. However, he has
alleged clearly that defendant left him in a covered cell
with a sharp object, even though defendant knew that
plaintiff was threatening to harm himself, and did not check
on him for almost two hours, by which time plaintiff had cut
and severely injured himself. An Eighth Amendment claim and
case such as this primarily requires plaintiff to testify
clearly about those facts, and about what happened to him,
which plaintiff appears fully capable of doing.
Plaintiff's latest motion does not identify any new
factors, anything more complex or difficult about his case or
show why he is unable to tell a narrative story about what
defendant did to him or failed to do to protect him.
Accordingly, this motion will be denied as well.

ORDER

IT IS
ORDERED that

1.
Plaintiff Robert Ward's motion to compel discovery, ...

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